The case of Royal Mencap Society v Tomlinson-Blake has been hotly debated over the last couple of years. Mrs Tomlinson-Blake was a support worker who worked with vulnerable adults. She worked two different types of shift. If she worked in the day time, between 7am and 10pm, then she was paid at least the National Minimum Wage (NMW). However, she was also required to carry out a ‘sleep in’ shift. During this shift, she was contractually obliged to spend the night at her place of work. She had no specific tasks to undertake, but needed to remain on the premises should anyone on site require her assistance. During the shift, she was provided with sleeping facilities and was paid a flat rate for the shift of £22.35 and one hour’s pay at £6.70, below the NMW.
Mrs Tomlinson-Blake subsequently brought a claim to the Employment Tribunal (ET), claiming that she should be paid NMW for the entirety of the shift. The basis for this was that she was working simply by being present in the house. The ET noted that there was an obligation for her to remain on the premises, both contractually and through Mencap’s regulations, and she had to listen and respond if support was needed. The ET found that Ms Tomlinson-Blake was working for the whole period of her shift, and was entitled to NMW for the whole shift. The EAT agreed with this decision.
Royal Mencap Society subsequently appealed to the Court of Appeal (CA), which took a thorough look at the legislation and previous decisions made in the area. In the end, the CA decided that Mrs Tomlinson-Blake was merely ‘available for work’ as opposed to actually working. As such, she was not entitled to be paid NMW for her ‘sleep in’ shifts. This decision means that workers are only entitled to NMW where they are, and are required to be, awake for the purpose of performing some specific activity.
It should be noted however, that there would have been a requirement for employers, such as Mencap, to back-pay the members of staff who undertook ‘sleep in’ shifts. This would have equated to a substantial amount of debt for many businesses and would have been unaffordable for many care providers, who could have gone insolvent had the judgment gone the other way. Policy may have played a part in this decision. Nevertheless, this matter may not yet be over because this may well be appealed to the Supreme Court.
Although this is good news for care home operators each case dealing with sleep-ins should be considered on its own facts. There have been previous cases regarding nurses and night-watchmen (see more below), for example, which the courts have decided differently and concluded that sleep is not incompatible with duties. Clarification on the law overall is still needed.
What does this mean for you or your business, and what should you be doing now?
This case is beneficial to employers, for the time being. If you require that your employees sleep at the premises, they may not need to be paid NMW for their shift, so long as they are only available to work, as opposed to working. Despite this, in the care industry as a whole, there has been a shift towards paying higher amounts for these ‘sleep in’ shifts, or paying NMW anyway. Even Mencap, the subject in this case, has called for better pay for care workers.
With regards to actions for you to take, consider whether your employees are working or merely available for work. In the judgment, the case was differentiated from another case, Scottbridge, which involved night watchmen, who were working for the purposes of NMW. The differences considered included: significant duties at the start and end of the shift (such as undertaking patrols), a more limited time for sleep, and whether or not the worker was provided with a ‘proper bed in an area set aside for sleeping’. If the worker is able to sleep in a proper bed for the majority of the shift, it may well indicate that the worker will not be entitled to the NMW.
As stated previously, there is a possibility that this case could be appealed to the Supreme Court so continue subscribing to our newsletter for further updates.
The full judgment from the Court of Appeal case can be read HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.